Patent Office Cancels Use of “Redskins”Trademark

The Patent Office (more specifically, the Trademark Trial and Appeal Board) has canceled the patent owned by the Washington Redskins on the "Redskins" name. Five Native Americans filed suit under 15 U.S.C. §1064(c), the Trademark Act seeking cancellation of the patent on the name. The Patent Office ruled in their favor. The plaintiffs alleged that the trademark on the name violated 15 U.S.C. §1052(a), which prohibits trademarks which disparage persons or brings them into contempt or disrepute. See decision in Blackhorse v. Pro-Football, Inc., Cancellation No. 92046185.

This is the second such suit. In 1992, another group of Native Americans field suit. That suit lasted seven years. The Patent Office again found the term disparaging. The defendant appealed to the U.S. District Court and succeeded in overturning the decision. The District Court overturned the Patent Office on the basis of laches, a Latin term meaning "unreasonable delay." The court essentially said the trademark has been in existence too long and the plaintiffs let it go too long.

But, this time, the Patent Office found that after the "America Invents" statute was passed in 2011, the laches defense will no longer obtain. Since, laches is based on equity and the equity of "human dignity" will trump financial interest.

I understand from persons with more knowledge than I about trademarks that the Redskins team can still use the name under general common law trademark registration. But, this ruling does make the use of the term more problematical if they are sued over its use. But, if this litigation continues, the team will have to re-consider the value of this name.